2. The applicant requests that he be awarded early retirement pay based on 15 years and 8 months of active duty.
3. He states that he separated from active duty under the voluntary incentive program-special separation benefit (SSB) and was credited with 14 years and 3 months of active duty service. Following release from active duty he applied for entry into the Active Guard Reserve (AGR) program. He states that his application was denied because he had 15 years and 8 months of active service which was more than was permitted for entry into the program. He contends that had he known he had over 15 years of active service at the time he accepted the SSB, he may have opted for early retirement instead or in the alternative his lump sum payment should have been based on the 15 years and 8 months of service rather than 14 years and 3 months of service.
4. The applicant's military records show that he was separated from active duty under the SSB program on 2 September 1992 in the grade of major and accepted a lump sum SSB payment of $88,885.56. His total active service at that time, as reflected on DD Form 214 (Certificate of Release or Discharge), was 14 years, 2 months and 21 days.
5. Upon his release from active duty, he applied for entry into the USAR AGR program. He was initially selected and advised by letter dated 7 March 1994 that he was being placed on an order of merit list (OML) with OML number 19. The letter also informed him that placement on the OML did not guarantee entrance on active duty in the AGR program. He was subsequently removed from the OML when recalculation determined that he had more than the prescribed years of active service for entry into the program.
6. Under rules codified in Army Regulation 135-18, The AGR Program, participants must be able to serve 5 consecutive years before attaining eligibility for nondisability retirement with 20 years of service. In letters of 9, 17 and 19 January 1995 the Office of the Chief, Army Reserve (OCAR) advised the applicant that he was not eligible for entry into the program based on a calculation of his active federal service (AFS) which determined that he actually had completed 15 years, 8 months of AFS (instead of the 14 years, 2 months and 21 days reflected on his DD Form 214) and he was, therefore, not eligible to enter the program.
7. In the processing of this case, an advisory opinion was obtained from the OCAR. It indicates that no record now exist of the computation performed in 1994 that determined the applicant had completed 15 years and 8 months of active service. It further states that the current USAR Retirement Point Accounting System shows that the applicant has been credited with completing 14 years, 2 months and 22 days of active service. It also notes that the applicant had recently applied again for the AGR program but was denied entry because he had been passed over for promotion.
8. The Total Army Personnel Command (PERSCOM) message dated 20 April 1993, Subject: FY93 Early Retirement Program, furnished eligibility requirements and application procedure for the program. It provides in pertinent part, that early retirement is not an entitlement and it will only be offered to soldiers and officers who meet strict eligibility requirements outlined in the message. Officers must be in the grade of major and have completed 15 years active federal service as of 31 August 1993. The window for application for early retirement is from 3 May 1993 until manpower and budget requirements are met. Individuals who have already separated under provisions of any other voluntary or involuntary separation program are not eligible for early retirement.
9. Army Regulation 135-18, provides in pertinent part, qualifications and disqualifications for entry into the AGR program. It states that entry into the program will be denied for soldiers who are unable to serve at least 5 years on active duty prior to achieving 18 years of AFS and for officers who are nonselected for promotion by a HQDA promotion board.
CONCLUSIONS:
1. Based on the information now available, it appears that at the time of his initial application, he was eligible for entry in the AGR program due to having served only 14 years, 2 months and 21 days of AFS and not 15 years, 8 months as later determined by the OCAR. However, there are no records now available to show how the OCAR determined that he had completed over 15 years of AFS.
2. It is clear from the evidence of record that the applicant was removed from the AGR OML as a result of what appears to have been an erroneous calculation of his AFS.
3. While entry on the OML may not entitle him to entrance on active duty in an AGR status, his removal from that list foreclosed any possibility he had of being considered for the program. Therefore, it would be just to integrate him into the current OML at the same relative number (#19) that he held when he was placed on the list on 7 March 1994.
4. Similarly, it would be appropriate to waive any disqualification that may have arisen since his initial application date and permit him to compete for an AGR tour with all others so qualified.
5. In the absence of any evidence suggesting that he completed 15 years of AFS, he is not eligible to apply for an early retirement in lieu of his SSB separation.
6. In view of the foregoing, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected:
a. by showing that the individual concerned was placed on the current AGR OML with the same sequence number (#19) that he held when he was removed from the 7 March 1994 OML; and
b. by waiving any disqualification for entry into the AGR program that have arisen since his original application date.
2. That so much of the application as is in excess of the foregoing be denied.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
__________________________
CHAIRPERSON
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